EU Primary Law Research Articles

Policy Note: Special Taxes for Special Times? A Critical Analysis of Fiscal Crisis Responses with an Earmarking Feature in the Context of EU Law

Do special times require special taxes? The answer may not be the same from a legal, political, or economic perspective. One type of answer that legislators in Europe – both on the national and the supranational level – have given to the crises that make our times special are fiscal measures targeting extraordinary profits, revenues, or even assets while reserving the collected revenue for specific purposes. This article discusses the arguments for and against such earmarked crisis response measures in the context of their implications in the framework of EU law. It argues that specific earmarks may be attractive for reasons of political psychology such as health expenditure or inflation relief for households and firms. However, they may have unintended legal consequences by putting the respective measure into the scope of other legal regimes such as social security or banking regulation. The article contributes to the current debate about appropriate fiscal measures in times of crisis by pointing to examples of such direct and indirect interactions with primary or secondary EU law based on earmarking.

Региональное регулирование права работников на участие в управлении организацией на примере ЕС

The article considers the consequences of the impact of primary (Treaty on the Functioning of the EU) and secondary EU law (Regulation No. 2157/2001248 and Directive 2001/86/EC) on the implementation of the right of employees to participate in the management of the organisation. Based on the analysis of the positions of the European Court of Justice, it is noted that there are constructions that encourage abusive practices on the part of business, which create threats to the realisation of the right to participate in management.

Does the European Union need a ‘Drought Directive’? A legal perspective

With global warming progressing, droughts are anticipated to increase in frequency in the European Union. However, under the current EU legal framework, they remain on the margin of water management policies. To adapt to changing natural conditions, the Member States should take a more proactive approach to drought mitigation. The policy options on how to accelerate such a transition encompass the continuation of reliance on soft-law guidances, the amendment of the Water Framework Directive or the adoption of a ‘European Drought Directive’ – a new, up-to-date, all-encompassing legal instrument. This paper analyses those policy options from a legal perspective. It also exposes problems and benefits they can bring if and when pursued. As the Water Framework Directive remains ‘fit for purpose’, the priority shall be given to updating existing soft-law guidances and their translation into all official EU languages. However, there are strong arguments in favour of future legislative reform. This paper submits that a more proactive approach would conform more fully to EU primary law. Nevertheless, irrespective of the chosen policy option, coordination of drought mitigation and measures under existing EU water legislation at the river basin district level must be ensured.

Accession of the EU to the ECHR: A more developed fundamental rights low for the EU after the Lisbon Treaty?

The Treaty of Lisbon introduced important changes in the protection of human rights in the EU, the most important of which lie in the changes in Article 6 of the Treaty on the European Union. These provisions indicate that the EU Charter of Fundamental Rights is now legally binding, having the same status as primary EU law, and that the EU "shall accede" to the European Convention on Human Rights (ECHR). Since the entry into force of the Treaty of Lisbon, the Charter has been referred to on numerous occasions by the European Court of Justice and now acts as the main source of human rights in the EU. This article examines the import of this case law, some of which are ground-breaking and controversial, as well as how the higher profile for human rights under the Charter is likely to change the nature of the EU’s relationship with the ECHR. The article also examines the complex procedure for the EU’s accession to the ECHR, which is now underway, highlighting particularly significant aspects of this process. The article concludes with some general reflections about the status of human rights protection in the EU, suggesting that this has become one of the most significant areas of EU law that has had, and continues to have, a crucial impact on the EU’s relationships with its Member States, the EU and international law.

Article: The European Triangle: On the Relationship between Primary EU Law, Secondary EU Law and National Law in the Field of Direct Taxation

National tax law provisions, EU Directives’ provisions and primary EU law interact. National rules may be based on EU law, EU law may prohibit national legal requirements, and sometimes secondary EU law can be contrary to primary EU law. The three sources of law that, in concert, form a triangle by connecting the three sources,affect each other, especially for interpretational purposes. The author analyzes the relation between the different sources of law, taking each side of the triangle as starting points, and critically addresses flaws in the current approach towards interpretation of EU law, direct effect and the compatibility of secondary EU law with primary EU law. Especially with an increasing number of forthcoming EU Directives in the field of direct taxation, the determination to what extent a directive is an acceptable political compromise or is contrary to fundamental principles is getting increasingly important. EU Law, Directives, Interpretation, Implementation, Harmonization, Direct effect, Fundamental Rights, manifest error, ATAD, DAC

European “Frankenstein Constitutionalism”: TEU Article 2 as a Federal Homogeneity Clause

This essay argues that the Court of Justice of the European Union's (CJEU) insertion of a federal homogeneity clause into the EU's primary law is an (ahistorical) and dysfunctional “legal transplant” that does not correspond to the state of European integration. It has its place in specific state constitutional systems, which needed or need an axiological backing of their foundational order, but cannot adequately organize the interaction between the EU and member states. In post-war Germany, value constitutionalism had an important stabilizing effect on society. It contributed to the symbolic reproduction of a society that needed new patterns of orientation after the horror of National Socialism. The insertion of such a clause into the basic order of the EU is taken out of context and brings with it dysfunctional and opportunistic results.

Reporting Tax Schemes Violates Legal Professional Privilege

In this article, the author discusses the judgment of the CJEU in the case C-694/20 Orde van Vlaamse Balies and Others, which extends the protection of professional secrecy for lawyers. In the context of combating aggressive tax planning, the CJEU ruled that requiring licensed lawyers to inform other intermediaries involved in a tax scheme is unnecessary and violates the right to respectful communication with the client. The CJEU’s view that legal professional privilege takes precedence over tax objectives and obligations is the main novelty of the judgment under review. Individuals who consult a lawyer, as well as a tax advisor, have a reasonable expectation that their communications will remain private and confidential. Therefore, except in exceptional circumstances, they have a legitimate expectation that their lawyer will not, without their consent, disclose to anyone the fact that they are the subject of his or her advice. Following the judgment, the European Commission will legislate to amend the DAC6 Directive so that it meets the requirements of EU primary law as identified by the Court.
 The judgment is also important because it recognises that legal professional privilege is not limited to advice given in the context of litigation, which has been a restrictive view in antitrust cases.
 In Orde van Vlaamse Balies and Others, in which the Court held that the duty to inform other intermediaries imposed by Article 8ab(5) DAC 6 interfered with the right to respect for communications between lawyers and their clients guaranteed by Article 7 of the Charter of Fundamental Rights, the Court gave primacy to primary law (the Charter of Fundamental Rights) over secondary law (DAC 6). In this context, a new jurisprudential trend can be observed in which a substantive review of the Tax Directive was carried out on the basis of the Charter of Fundamental Rights. In general, the CJEU has been reluctant to get involved in substantively reviewing EU secondary legislation. More recently, however, the CJEU seems to be carefully analysing provisions of EU directives that are not in line with fundamental rights.

Case Law Trend: The End Does Not Justify the Means: On How the Secondary EU Law Infringes the Primary EU Law in the Light of the Recent Judgments of the CJEU

The constitutional character of the Union legal order based on the rule of law requires that secondary sources of Union law are not infringing the primary sources, including the Charter of the Fundamental Rights of the European Union (CFR). The latter’s importance as a valid instrument to be invoked against measures that are excessive in their interference with the fundamental rights has recently been reinforced by the Court of Justice of the European Union (CJEU) in the judgments in cases such as C-694/20, Orde van Vlaamse Balies and Others, and joined cases C-37/20 and C-601/20, Luxembourg Business Registers and Sovim. The CJEU invalidated provisions of the Directive on Administrative Cooperation (DAC6) and 5AMLD which reminded that this is the case even when rules are motivated by important collective interests. These include the combat against tax evasion and tax fraud and enhancing broadly understood transparency and are agreed upon and are ‘validated’ by a Union’s legislature. The lessons to be learned are not to be underestimated. Understanding where the limits lie is decisive for valid law making and law enforcement as well as for effectively invoking the rights of individuals and businesses. Charter of the Fundamental Rights, taxpayers’ rights, DAC6, AMLD, EU constitutional order, transparency, proportionality, compatibility with primary Union law, right to privacy, right to fair trial

Consumer Law and Environmental Protection: Consumer Sales Directive 2019/771 Example

This paper reviews principal coherence of EU Consumer law and environmental protection as demonstrated through analysis of Consumer Sales Directive. After dichotomy between EU consumer and environmental protection, and EU primary law’s obligation to coordinate these areas is assessed, rules of directive which reflect (or conversely – neglect) environmental protection goal are analysed. It is later argued that directive basically ignores Union’s quest towards sustainability. Although singular rules from directive may indeed be changed hoping it would help to fight ecological problems, taking consumer law’s role in solving ecological challenges seriously means more than fine-tuning several provisions but changing consumer law fundaments’ instead.

Towards a Climate Resilient European Union? Prospects and Limitations of a General EU Climate Adaption Law

Abstract Unlike EU climate protection law, the law governing climate adaptation remains underdeveloped and so-far has not attracted similar scholarly attention. Given the unfolding climate crisis and global mitigation efforts falling short of meeting the temperature goal agreed upon in the Paris Agreement (pa) this article focuses on a fairly new subject of legal study: EU climate adaptation law. First, the article critically assesses the perceived need to address climate adaptation in a more general manner at the EU level beyond more specific subject areas, such as EU water law. It then maps the overarching framework for climate adaptation built upon the new central adaptation provision in Art. 5 EU-Climate Law and established environmental principles of EU primary law. Finally, the Article discusses strengths and weakness of this general framework.

The increasing power of the European Union in the field of criminal law and the consequences for the national law of the Member States

The increasing power of the European Union in the field of criminal law and the consequences for the national law of the Member StatesKeywords: criminal law, European Union, EU primary law, EU secondary law, EAW, EIO.In the following pages, the author gives a brief explanation of what does it mean European criminal law and which parts of criminal law are actually affected by the EU. Possible future development is assessed in the last part ofthe article. The article aims to present a brief history of European criminal law, that helps us understand why the EU criminal law has its main features and why the specific areas are affected. The specification of rules and areasdirectly affected by European criminal law explains the EU’s influence and its interest in involvement in particular social relations and also in criminal law which developed into the increasing importance of EU criminal law in lastyears. The article uncovered and explained the positive elements of EU criminal law and envisaged the future deeper harmonisation in the field of criminal law which the author thinks is a natural development of the EU integration,which started more than 70 years ago

Contracted EU civil servants in EU common security and defence policy missions: Procedural routes to judicial remedies

The right of judicial review for EU civil servants against their employer has historically been guaranteed by both EU primary law and EU secondary law. This has been through staff regulations having regard to Articles 270, 298, and 336 TFEU providing for judicial redress of employment disputes. However, an increasing number of EU civil servants fall outside the scope of such staff regulations, for example, contracted EU civil servants working for the EU's international missions in third states. These Common Security and Defence Policy (CSDP) missions employ thousands of people in different operational military and civilian capacities in the most dangerous regions of the world. There is a growing body of case law that has been developed at the Court of Justice of the European Union regarding access to justice for such staff, and how their employment-related disputes are to be adjudicated upon in the absence of staff regulations. This article probes the issue, and analyses the procedural difficulties, notably in terms of access to remedies, choice of applicable law, and the distinction between contractual and non-contractual issues, which such staff face. The article argues in favour of the introduction of specific staff regulations to cover contracted EU civil servants in CSDP missions, to ensure their procedural rights are protected, and that they have equal access to judicial protection.

The Response of Social Europe in Times of Covid-19

This article addresses selected issues relating to the current situation of Social Europe, examining a possible legal basis for a Directive on short-time work as proposed by Sylvaine Laulom. Subsequently, it discusses the legal basis for the proposed Directive on minimum wages, concluding that there is no sufficient legal basis in EU primary law as a result of Article 153 (5) Treaty on the Functioning of the European Union (TFEU). The article then provides a brief overview of developments in long-term care and collective bargaining for self-employed persons. Finally, it concludes with examples taken from Austrian case law of how the COVID pandemic can open up a new perspective for dealing with existing problems in labour and social security law Minimum Wage, Collective Bargaining for Self-Employed Persons, Long-Term Care

The limitations of fixed-term contract regulation

This case note discusses the lack of remedies in case of an infringement of clause 5 of the Fixed-Term Work Directive 1999 and the dangers in cases where fixed-term work abuses can be traced back to discriminatory treatment. The analysis focuses on the availability of remedies in case of primary EU law being violated, but also on the limits of special treatment that an entreprise de tendance may claim for its employees.

The Common Commercial Policy as a Legal Instrument of Confirmation of the European Union International Identity

Abstract The key component of European Union external action is undoubtedly its Common Commercial Policy. Under EU primary law, the exercise of this policy falls within the exclusive competence of the EU. In order to assure its implementation, the competent EU institutions negotiate and conclude international agreements with third countries and adopt secondary law acts, mainly in the form of Regulations with the aim of liberalizing and expanding international trade as well as promoting protecting the commercial interests of member states' businesses in the international markets. The aim of the study is to examine the question of the delimitation of the scope of the Common Commercial Policy as well as the operation of the EU institutional system regarding its the formation and implementation after previously analyzing the objectives served by the exercise of this common policy in the field of international economic relations. JEL classification numbers: K20, K33, F13. Keywords: European Union Law, Common Commercial Policy.

Case C-817/19, Ligue des Droits Humains v. Council of Ministers (C.J.E.U.)

On June 21, 2022, the Court of Justice of the European Union (CJEU), sitting as a Grand Chamber, rendered its decision in the preliminary ruling procedure C-817/19, Ligue des Droits Humains v. Council of Ministers. In its ruling, the CJEU held that the surveillance regime established by the Passenger Name Record Directive 2016/681 (PNR Directive) was compatible with the Charter of Fundamental Rights of the European Union (CFREU/EU Charter). Nevertheless, the CJEU strictly circumscribed the Directive's transposition within EU member states' domestic laws. While restricting permissible interpretations of the PNR Directive's provisions and imposing strict limitations on its scope to ensure its conformity with the EU Charter, for the first time the Court upheld an instrument of indiscriminate surveillance as compatible with EU primary law. This represents a significant development in the CJEU's case law on privacy rights, which is likely to affect the negotiation and development of future PNR agreements with third countries, as well as the development of the ePrivacy Regulation, discussions surrounding the regulation of AI, and negotiations for international instruments aiming to address serious crimes. Further, the ruling confirms the CJEU's increasing convergence with the European Court of Human Rights' (ECtHR) case law on the matter, thus inscribing national security as a legitimate exception to the general prohibition of indiscriminate bulk data collection and retention in Europe.

Case C-817/19, Ligue des Droits Humains v. Council of Ministers (C.J.E.U.)

On June 21, 2022, the Court of Justice of the European Union (CJEU), sitting as a Grand Chamber, rendered its decision in the preliminary ruling procedure C-817/19, Ligue des Droits Humains v. Council of Ministers. In its ruling, the CJEU held that the surveillance regime established by the Passenger Name Record Directive 2016/681 (PNR Directive) was compatible with the Charter of Fundamental Rights of the European Union (CFREU/EU Charter). Nevertheless, the CJEU strictly circumscribed the Directive's transposition within EU member states' domestic laws. While restricting permissible interpretations of the PNR Directive's provisions and imposing strict limitations on its scope to ensure its conformity with the EU Charter, for the first time the Court upheld an instrument of indiscriminate surveillance as compatible with EU primary law. This represents a significant development in the CJEU's case law on privacy rights, which is likely to affect the negotiation and development of future PNR agreements with third countries, as well as the development of the ePrivacy Regulation, discussions surrounding the regulation of AI, and negotiations for international instruments aiming to address serious crimes. Further, the ruling confirms the CJEU's increasing convergence with the European Court of Human Rights' (ECtHR) case law on the matter, thus inscribing national security as a legitimate exception to the general prohibition of indiscriminate bulk data collection and retention in Europe.

Overlap Between Article 102 TFEU and Sector Regulation: Case C-721/20 DB Station & Service v ODEG

The Court of Justice ruled on 27 October 2022 on a request for a preliminary ruling from the Kammergericht (Higher Regional Court of Berlin) in a civil proceeding between DB Station & Service AG and ODEG Ostdeutsche Eisenbahn GmbH concerning reimbursements of alleged unfair infrastructure charges. DB Station & Service is a subsidiary of Germany’s state-owned railway incumbent tasked with managing stations, whereas ODEG is a private new entrant using railway infrastructure for passenger transport. It is the latest ruling in a series of disputes before German and EU courts concerning the competence to review those charges and the provisions applicable thereto. The judicial review of railway infrastructure charges in Germany has, for more than a decade, given rise to many fundamental questions related to the interplay between national civil law and EU law, EU primary law and secondary law, and the competences of regulatory bodies and national courts. It would go far beyond the scope of this article to give a comprehensive overview of all aspects of this fascinating saga. However, some background knowledge on the Court of Justice judgement in DB Station & Service is necessary in order to understand its implications.

The Principle of Effectiveness of Eu Law from the Perspective of the Obligations of National Courts

The principle of effectiveness of EU law, despite the lack of an explicit basis in EU primary law, is the source of principles regulating the nature of EU law and the manner of its application. It particularly affects the performance of duties by domestic courts, which, according to the wording of Art. 19 para. 1 item 2 TEU, is one of the elements of the EU judicial system. It is based on a systemic dualism that includes the CJEU and national courts. When analyzing the implementation of the principle of effectiveness, it should be noted that it covers two areas. The first is of general nature and concerns the obligation to ensure the effectiveness of EU law, and the second – the subjective one – is related to the obligation to ensure the effectiveness of EU law in a specific case by granting adequate protection to the rights of an individual that derive from EU law. In this aspect, the courts are of key importance, as they implement it through the systemic principle of effective judicial protection. It is a guide that indicates how to proceed and what principles should be followed in the process of application of EU law. This process consists of several stages, the implementation of which is subordinated to one goal – to guarantee effective judicial protection and thus the effectiveness of EU law. First, the court examines whether a given claim is based on a norm that has a direct effect, which will determine the next stage of action. Then, by referring to the principle of direct effect, it subsumes and, if necessary, applies the principle of primacy of EU law or a pro-EU interpretation. The last element that indirectly implements the principle of effectiveness of EU law is the referral for a preliminary ruling.

Admissibility of Evidence in EPPO Proceedings

The issue of cross-border admissibility of evidence is a recurring theme of European Criminal Justice, and continues to be perceived as a decisive obstacle hindering the effective prosecution and adjudication of crime. In spite of this, the EPPO Regulation does not include an extensive framework guaranteeing the cross-border admissibility of evidence. In this article, it is argued that this lacuna is far less worrisome than it seems: the boundaries set out by EU primary law, in particular Article 325(4) TFEU and the Charter of Fundamental Rights (CFR), as well as the opportunity of the ECJ to judge on these boundaries, allow for a sufficient convergence of national laws and practices on the (in-)admissibility of evidence.